"(1) The Secretary of State must appoint a person to monitor, in such manner as the Secretary of State may determine, refusals of entry clearance in cases where, as a result of section 88A of the Nationality, Immigration and Asylum Act 2002 (c. 41) (entry clearance: non-family visitors and students), an appeal under section 82(1) of that Act may be brought only on the grounds referred to in section 84(1)(b) and (c) of that Act (racial discrimination and human rights).".'.

Clause 9

Abandonment of Appeal

Amendment made: No. 28, in page 5, line 18, leave out from 'Kingdom' to end of line 21 and add

'(4A) An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom (subject to subsections (4B) and (4C)).

(4B) Subsection (4A) shall not apply to an appeal in so far as it is brought on the ground relating to the Refugee Convention specified in section 84(1)(g) where the appellant

(a) is granted leave to enter or remain in the United Kingdom for a period exceeding 12 months, and

(b) gives notice, in accordance with any relevant procedural rules (which may include provision about timing), that he wishes to pursue the appeal in so far as it is brought on that ground.

(4C) Subsection (4A) shall not apply to an appeal in so far as it is brought on the ground specified in section 84(1)(b) where the appellant gives notice, in accordance with any relevant procedural rules (which may include provision about timing), that he wishes to pursue the appeal in so far as it is brought on that ground.'.[Andy Burnham.]

'(g) state the steps which an employer must take to avoid a further breach in relation to any employee.'.

No. 13, in page 7, line 25 [Clause 14], leave out paragraph (e).

No. 14, in page 7, line 37 [Clause 15], leave out paragraph (c).

No. 15, in page 8, line 17 [Clause 16], at end insert

'(d) make such orders as to costs as it deems appropriate.'.

No. 16, in page 10, line 18, leave out Clause 21.

Mr. Malins:
We move on to the part of the Bill that deals with rights and duties of employers, and in particular to clause 14, which imposes the somewhat novel concept of a civil penalty on a person who employs a person subject to some immigration control. It is in connection with the general theme of the civil penalty that I introduce amendments Nos. 8 to 16. I hope that we will be permitted to divide the House on amendment No. 10 at the appropriate moment. My remaining amendments are essentially probing measures.

The problem of illegal working is acute. The strict liability criminal offence introduced by section 8 of the Asylum and Immigration Act 1996 dealt with it to some extent, but the problem with that legislation is that very few prosecutions have occurred. It is well known that hundreds of thousands of people are probably working illegally, but only 29 people have been prosecuted under the 1996 Act since 1997, and only eight or nine of them were found guilty.

Mr. Hollobone
: Illegal immigrants working in the Kettering constituency are a serious problem. I have tabled written questions to the Home Office, the answers to which revealed that no employers have been prosecuted in Kettering for employing illegal workers.

Mr. Malins:
I am interested in my hon. Friend's point. I visited his constituency some months ago, so I know that the matter, which he takes particularly seriously on behalf of his law-abiding constituents, is a problem in his area. I am not surprised to learn that no one has been prosecuted. As a general principle, it is all very well to introduce new criminal penalties, but the problem is often the lack of enforcement of the existing law.

The civil penalty introduced by clause 14 is a new concept, but I am troubled by the fact that we know very little about the Secretary of State's plans. For example, the minimum and maximum penalties are not stated in the Bill. I have heard a rumour that the maximum per worker will be £2,500, although perhaps the Minister will confirm that figure in due course. Maximum fines and penalties are always set out in criminal statute, so it is disappointing not to have that information. Likewise, the contents of the penalty notice referred to in clause 14 are left for us to guess at. The documents that employers must see and the steps that they must take are, again, not specified, and they will be decided later.

The Government promised to consult employers' groups and small businesses during the passage of the Bill, and I hope that the Minister will give us the result of those consultations in his response.

16 Nov 2005 : Column 1030

Nobody knows how many illegal immigrants are in this country and how many of them are working, but it is a fair conjecture that if there are, as is generally agreed, well in excess of 500,000 illegal immigrants, it is very likely that a great number of them are working illegally. Does the Minister have any idea how many such persons are working illegally in this country?

Will the Minister specifically deal with enforcement of the civil penalty? How will it be enforced in practice and by whom? Will it be a matter for the police, local authorities or Home Office officials? Who will be tasked, which is not a word that I like, with enforcement? It is all very well to introduce a civil penalty, but enforcement is a critical point.

The Labour-dominated Home Affairs Committee has had something to say over the past few years about illegal working, which it has pointed out can have a particularly pernicious effect on community relations and an unfair impact on the legally employed work force. The Committee has been critical of the Government for their failure to prosecute under the criminal sanctions for employing illegal workers. If the criminal law has not worked, what is so magical about the new civil penalty?

Amendment No. 8 would insert the words

"for more than 15 hours in any one week".

It is intended to draw to the Minister's attention the problem that may arise for employers in relation to part-time or seasonal employees or one-off workers who do a particular job that may last only a day but are nevertheless employed. Short-term working in catering and the tourism industry should also be addressed positively by the Minister when he responds.

I have a very good friend called Philip Walters, who lives in Dorset and is much involved in local life there. He reports to me that in his countyI think that it is the same throughout the countrya significant number of people are employed by farmers on very short-term contracts. For example, strawberry pickers may be employed for only one day and paid food for their troubles. Farmers are completely reliant upon that kind of labour. It would be unfair of the Government to expect every farmer to ask every strawberry picker for the appropriate identity documents, employment documents, and so on, and to keep photocopies.

My concern is mainly on behalf of individual employers, not so much companies. I am worried that innocent individuals will be caughtpeople who employ gardeners and cleaners who work for perhaps no more than 10 hours a week at the most. I put 15 hours in my amendment because I thought that that was reasonable and would enable the Minister to respond fully on the issue of part-time workers. Such individuals face a penalty under the clausethere is no doubt about that. Is it right to impose on an individual who employs one or more persons for fewer than 15 hours a week the bureaucracy, red tape and burdens that we find in clause 14, leaving them, quite unnecessarily, with penalties and notices to pay?

Hotels, restaurants and other entertainment enterprises are often completely reliant on taking full advantage of seasonal peaks in demand. This measure may dramatically reduce their flexibility, which is one of the most significant advantages that small firms have over their larger competitors, and in effect punish those

16 Nov 2005 : Column 1031

who experience an economic need for labour. The Government say that they support enterprise, small businesses, diversity and flexibility, but their failure to exempt part-time workers, in particular, could heap even more red tape on to businesses.

The Minister will tell us that he has consulted various bodiesand so have I. The end result is that I have received comments from several leading bodies that are very worried about the general problems that they will face. The CBI welcomes the clause on the criminal effects but says that

"civil penalties pose more problems than they create solutions"

and that if

"the primary aim of the measures in the bill is the prevention of abuse, it is correct to focus on those who offend wilfully and/or repeatedly."

I believe that there is force in what the CBI goes on to say:

"The introduction of civil penalties for negligent employers . . . is a distraction. We are concerned that the difficulty of taking enforcement actions against true rogue employers will lead to a perverse incentive to target legal firms who employ legitimate migrants and may make the occasional mistake. The introduction of civil penalties for negligent employers may present enforcement officers with an "easy win".